Reichmuth v. Adler

• Decision Date: 30 October 1941
• Docket Number: 37627
• Citation: 155 S.W.2d 181,348 Mo. 812
• Parties: Frank Reichmuth v. Jack Adler, Appellant
• Court: Missouri Supreme Court

155 S.W.2d 181

348 Mo. 812

Frank Reichmuth v. Jack Adler, Appellant

No. 37627

Supreme Court of Missouri

October 30, 1941

Appeal from Circuit Court of City of St. Louis; Hon. James E McLaughlin, Judge.

Affirmed.

Leahy Walther & Hecker for appellant.

(1) The defense of contributory negligence of plaintiff was pleaded and there was ample evidence in the record to support Instruction No. 3. (a) When the evidence of contributory negligence is such that reasonable minds may reasonably draw different conclusions therefrom, it is for the jury. Compton v. Construction Co., 315 Mo. l. c. 1089; Ganey v. Kansas City, 259 Mo. l. c. 662; Rouchene v. Gamble Const. Co., 338 Mo. l. c. 131. (b) If there is any substantial evidence to support an issue, it should be submitted to the jury. Matson v. Frazer, 48 Mo.App. l. c. 313; Jordan v. Daniels, 224 Mo.App. l. c. 758; Mott v. Kansas City, 60 S.W.2d l. c. 740; Rosenfeld v. Siegfried, 91 Mo.App. 169; Alexander v. Forum Restaurant, 225 Mo.App. l. c. 681. (c) Defendant is entitled to submit all facts and circumstances in evidence on the issue of contributory negligence and is entitled to all reasonable conclusions therefrom. Genta v. Ross, 225 Mo.App. 673. (2) The defendant could establish his defense by the testimony of plaintiff's witnesses. Evans v. Klusmeyer, 301 Mo. 352; Hedges v. Met. St. Ry. Co., 125 Mo.App. l. c. 586; Ayers v. Wabash Ry. Co., 190 Mo. l. c. 235; Cook v. Mo. Pac. Ry. Co., 94 Mo.App. 417.

Cox, Blair & Kooreman and Milton F. Napier for respondent.

(1) In considering an appeal from an order granting a new trial, this court views the order with a liberal eye. Castorina v. Herrman, 104 S.W. l. c. 300, 340 Mo. 1026. (a) An appellate court should hesitate to interfere with an order granting a new trial on the ground that the instructions are misleading. Convoy v. St. J., L., H. & P. Co., 134 S.W.2d l. c. 96, 345 Mo. 592. (b) The fact that appellant has not brought the "arguments" to this court precludes a ruling here that the trial court erred in granting a new trial on the ground that Instruction 3 was "misleading." (c) The whole record, on the trial, including other instructions, is relevant, and the whole record should be here. (2) "The negligence which will defeat a recovery must be such as proximately contributed to the injury. The remote cause will be no more noticed as a ground of defense than as a ground of recovery." 3 Cooley on Torts (4 Ed.), sec. 486, p. 413; Adams v. Ferry Co., 27 Mo. l. c. 98; Morrissey v. Ferry Co., 43 Mo. l. c. 383; Kupferle Foundry v. Terminal Ry., 275 Mo. l. c. 457; 20 R. C. L., sec. 113, pp. 136, 137; Oates v. Street Ry., 168 Mo. l. c. 548; Isbell v. Railroad Co., 27 Conn. l. c. 402. (a) The above rule applies even if a plaintiff is, at the time, violating a city ordinance. Kupferle v. Term. Ry. Co., 275 Mo. l. c. 457. (b) A remote cause is not contributory negligence. Perkins v. K. C. S. Ry., 49 S.W.2d l. c. 108, 329 Mo. 1190; Railroad v. Lumber Co., 125 Ala. l. c. 261. (3) A mere "antecedent occasion of an injury" is not contributory negligence. Respondent's position at the time of injury was a mere "antecedent occasion" of his injury. Perkins v. K. C. S. Ry., 49 S.W.2d l. c. 108, 329 Mo. 1190; 20 R. C. L., sec. 113, p. 137. (4) "And so, as it is expressed, if the plaintiff's acts merely created the condition under which the injury was received, it is proper to permit him to recover," 20 R. C. L., sec. 113, p. 137, and "is not contributory negligence." Perkins v. K. C. S. Ry., 49 S.W.2d l. c. 108, 329 Mo. l. c. 1190. (5) "Although, where both parties are at fault, where there is negligence on both sides and both actively contribute to the injury at the time of its commission, there can be no recovery, yet where there is mere passive fault or negligence on the part of the plaintiff, the defendant is bound to the observance of ordinary care in order to avoid doing him a wrong." Adams v. Ferry Co., 27 Mo. l. c. 101. (6) A proximate cause has been aptly defined as "one which in natural sequence, undisturbed by any independent cause, produces the result complained of." 1 Cooley on Torts (4 Ed.), sec. 53, p. 135; Perkins v. K. C. S. Ry., 49 S.W.2d l. c. 108, 329 Mo. l. c. 1190. (a) "Mere negligence, without any resulting damage, no more bars a plaintiff's recovery than it creates a liability against a defendant." Oates v. Street Ry., 168 Mo. l. c. 548. (7) Plaintiff's act or omission when only a remote cause or a mere antecedent occasion or condition of the injury is not contributory negligence." Perkins v. K. C. S. Ry., 49 S.W.2d l. c. 108, 329 Mo. 1190. (8) Respondent was not required to anticipate and prepare against the negligence of appellant's servant in throwing him from the scaffold. McKenna v. Lynch, 289 Mo. l. c. 22; Cento v. Security bldg., 99 S.W.2d l. c. 7; State ex rel. v. Haid, 51 S.W.2d l. c. 1017, 330 Mo. 959. (9) Even though respondent was not in the exercise of ordinary care and even though he should have had a guard rail or rope to prevent him from falling from the scaffold while at his work of painting, that gave appellant no right to throw or "dump" him from the scaffold because he had exposed himself to the danger of accidentally falling from the scaffold in the course of his painting work. Isbell v. Railroad, 27 Conn. l. c. 403; Adams v. Ferry Co., 27 Mo. l. c. 98; Bobos v. Krey Packing Co., 296 S.W. l. c. 161, 317 Mo. l. c. 117. (10) There can be no dispute on the issue as to contributory negligence, that Alton knew that respondent was painting a window on the outside of it. The plea of contributory negligence admits, for present purposes, the negligence it seeks to avoid. Nevertheless, Alton threw the window open and "dumped" respondent from the scaffold. This was "equivalent to willfulness, wantonness or recklessness." Respondent's position became "perilous" in the proper sense, only as a result of Alton's act. Bobos v. Krey Packing Co., 296 S.W. l. c. 161, 317 Mo. l. c. 117. (a) "If the defendant's conduct amounts to reckless disregard of the plaintiff's safety, the plaintiff is not barred from recovery by any form of contributory negligence." Restatement of the Law of Torts, sec. 482, "Comment," p. 1262. (11) The fact that the plaintiff has failed to exercise reasonable care for his own safety does not bar recovery unless plaintiff's harm results from a hazard because of which his conduct was negligent. Restatement of the Law of Torts, sec. 468.

OPINION

Clark, J.

In this suit for personal injuries, tried to a jury in the circuit court of the City of St. Louis, the verdict was for defendant. The trial court sustained plaintiff's motion for a new trial for the stated reason that "the court erred in giving and reading to the jury instruction No. 3 offered by defendant." From this order granting a new trial defendant has appealed.

In response to the allegations of his petition, plaintiff's evidence tended to prove: that at the time he was injured he was engaged as an independent contractor in painting the windows on the outside of a two story building owned by defendant; plaintiff furnished his own equipment and employed his son to assist him; while painting they stood on a scaffold suspended by ropes attached to the top of the building; each window was composed of three sections with the middle section on hinges so it could be opened by pushing the bottom of the section to the outside of the building; while plaintiff was standing on the scaffold and painting one of the first floor windows, the scaffold being from eleven to fifteen feet above the ground, one of defendant's employees (Alton) on the inside of the building suddenly, and without warning, opened the window against the scaffold pushing it away from the building and thereby causing plaintiff to fall to the ground and receive injuries.

Defendant's answer was a general denial coupled with a plea of contributory negligence which, so far as pertinent to this appeal, alleged "that plaintiff negligently and carelessly maintained and used a scaffold or staging while painting the windows on defendant's building without equipping the same with a hand rail or rope to support him or prevent him from falling from the said scaffold, when plaintiff, by the exercise of ordinary care for his own safety, would have done so."

Instruction number three given at defendant's request was as follows:

"The Court instructs the jury that if you find and believe from the evidence that on the occasion mentioned in evidence plaintiff was engaged in painting the windows of defendant's building, and that in so doing he was using a scaffolding or staging owned or furnished by plaintiff, and if you so find and believe from the evidence that such scaffold was not equipped with a hand-rail or rope to support him or prevent him from falling from said scaffold, and that plaintiff would, in the exercise of ordinary care for his own safety, have used a scaffold equipped with a hand-rail or rope to prevent him from falling therefrom and that he failed to do so, and that such failure of plaintiff to so equip said scaffold, if you so find he failed to do, was negligence and directly contributed to cause him to fall and be injured, then, if you so find, plaintiff cannot recover of defendant and your verdict should be for defendant."

A trial court has wide discretion in passing on a motion for new trial and, where such a motion is sustained, this court will be liberal in upholding the trial court's action. [Castorina v. Herrmann, 340 Mo. 1026, 104 S.W.2d 207; Schierloh v. Brashear Freight Lines (Mo.), 148 S.W.2d 747.] We will not reverse such ruling unless it clearly appears that the trial court has abused its discretion. [Schipper v. Truck Co. (Mo.), 132 S.W.2d 993.] In Hoepper v. Southern...